Georgetown of the Highlands Condominium Owners' Assn. v. Nsong , 113 N.E.3d 192 ( 2018 )

[Cite as Georgetown of the Highlands Condominium Owners' Assn. v. Nsong, 2018-Ohio-1966.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106025
GEORGETOWN OF THE HIGHLANDS CONDOMINIUM OWNERS’ ASSOCIATION
PLAINTIFF-APPELLEE
vs.
STELLA NSONG, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-15-854121
BEFORE: Jones, J., E.T. Gallagher, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: May 17, 2018
ATTORNEY FOR APPELLANT
Michael A. Heller
Mike Heller Law, L.L.C.
333 Babbit Road, Suite 233
Euclid, Ohio 44123
ATTORNEYS FOR APPELLEES
For Georgetown of the Highlands
Condominium Association
Jared S. Klebanow
Klebanow Law, L.L.C.
850 Euclid Avenue, Suite 701
Cleveland, Ohio 44114
Steven B. Potter
Dinn, Hochman & Potter, L.L.C.
5910 Landerbrook Drive, Suite 200
Cleveland, Ohio 44124
For Bank of New York Trust
Company, N.A., as Successor
Kimberly Y. Smith Rivera
McGlinchey Stafford, P.L.L.C.
25550 Chagrin Blvd., Suite 406
Cleveland, Ohio 44122
For Internal Revenue Service
Ruchi V. Asher
James R. Bennett
U.S. Attorney’s Office, Northern District
400 United States Courthouse
801 W. Superior Avenue
Cleveland, Ohio 44113
Cuyahoga County Treasurer
Michael C. O’Malley
Cuyahoga County Prosecutor
Adam D. Jutte
Assistant County Prosecutor
310 W. Lakeside Avenue, Suite 300
Cleveland, Ohio 44113
For State of Ohio Department of Taxation
Mike DeWine
Ohio Attorney General
30 East Broad Street
Columbus, Ohio 43215
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Stella Nsong (“Nsong”), appeals from the trial court’s June 20,
2017 judgment that overruled Nsong’s objections to a magistrate’s decision, and adopted the
magistrate’s decision. For the reasons that follow, we affirm.
I. Factual and Procedural History
Georgetown v. Nsong
{¶2} Plaintiff-appellee Georgetown of the Highlands Condominium Owners’ Association
is a not-for-profit corporation organized under the laws of Ohio in accordance with R.C. Chapter
5311. It acts as the association of unit owners for the Georgetown of the Highlands
condominiums in Euclid, Ohio. Nsong owned a condominium unit on the property.
{¶3} By virtue of owning the property, Nsong was bound by the association’s declaration
and its bylaws. Under the declaration, she was bound to pay the association’s monthly
assessments, which were charged against her property for her share of the common expenses
incurred for administration and maintenance of common areas, facilities, and other services
provided to all of the unit owners.
{¶4} In November 2015, the association filed this complaint in foreclosure against Nsong,
alleging that she failed to pay her share of common expenses and owed the association in the
amount of $7,417.48 as of October 2015. The association alleged that it had a continuing lien on
the property for the unpaid fees. Other persons and entities who may have had a claim or interest
in the property were named as defendants as well, including the United States of America.
Procedural History
{¶5} The procedural history of this case spans from the filing of the complaint in
November 2015 through the summer of 2017, when the judgment now being appealed was issued.
The history, for the purpose of this appeal, is detailed below.
{¶6} After the complaint was filed in November 2015, the trial court referred the matter to
a foreclosure magistrate. As mentioned, in addition to Nsong, there were several other people
and entities named as defendants and, as such, service on all the defendants took awhile. In
regard to Nsong, certified service to her went unclaimed two times; service was perfected on her
by regular mail in January 2016.
{¶7} In January 2016, the United States of America filed an answer. In February 2016,
Nsong, pro se, filed a “response” to the complaint, “disputing the validity of a portion” of the
claim. In March 2016, the trial court put forth an entry stating that the association had perfected
service on all the defendants and ordering the association to proceed with the case, including the
filing of any dispositive motions.
{¶8} In May 2016, Nsong, by and through counsel, sought leave to file an answer; the trial
court granted the request and Nsong’s answer was timely filed. The court then ordered the
association to file “any dispositive motions necessary to address defendant Stella Nsong’s
answer.” The association timely filed a motion for summary judgment on July 11, 2016.
{¶9} Thereafter, Nsong requested that the matter be referred to mediation. Over the
association’s objection, the trial court granted Nsong’s request, and the matter was referred to
mediation in August 2016. Discovery and motion practice were stayed during the mediation
proceedings.
{¶10} The mediation was held on November 22, 2016, but the case did not settle and
therefore was returned to the magistrate for further proceedings. On December 5, 2016, the
magistrate issued an order granting the association’s motion for summary judgment in its favor on
its complaint and against Nsong. Nsong had not filed an opposition to the summary judgment
motion. The association had requested attorney fees; the trial court stated that the issue would be
addressed at a hearing.
{¶11} On December 13, 2016, Nsong filed two motions: one for relief from judgment, and
the other for leave to file counterclaims. The court granted her leave, and she timely filed
counterclaims on January 19, 2017. The motion for relief from judgment was denied.
Nsong v. Georgetown
{¶12} In her counterclaims against the association, Nsong alleged that in 2015, while she
was out of town, the association entered her unit on the “pretense” of repairing a pipe, and
engaged in “destructive activities.” Specifically, Nsong alleged that the association “dug up” her
kitchen and bathroom and “left it in damaged condition, to wit, [with] mountains of debris and
huge holes * * *.” She contended that the association’s actions created a defective and unsafe
condition that put her at risk of harm and did actually harm her. She asserted relief based on the
following claims: (1) trespass to land/trespass to chattel; (2) negligence; (3) discharge of lien; (4)
invasion of privacy/intrusion of seclusion; and (5) breach of contract.
{¶13} After the association timely answered the counterclaims, on January 30, 2017, the
trial court ordered “the parties * * * to submit, within forty-five (45) days of the date of this order,
any dispositive motions necessary to address the defendant’s counterclaims.” On March 10,
2017, the association filed a motion for summary judgment on Nsong’s counterclaims.
{¶14} Nsong requested an extension of time to file a dispositive motion relative to her
counterclaims. In ruling on her request, the magistrate noted the parties were “previously
granted sufficient leave (of forty-five (45) days) to file dispositive motions to address the
counterclaims in this case and the defendant/counterclaimant only moved the court for additional
time to file her own dispositive motion five (5) days after the expiration of the period of leave
described above.”
{¶15} Notwithstanding the above mentioned, the trial court granted Nsong leave until
April 3, 2017, to file a motion for summary judgment relative to her counterclaims. Nsong never
filed a dispositive motion, however; nor did she oppose the association’s motion for summary
judgment. On April 13, 2017, the magistrate granted the association’s motion for summary
judgment on Nsong’s counterclaims.
{¶16} In May 2017, the magistrate issued a decision with findings of fact and conclusions
of law. Defendant, the United States of America, objected to the decision because it failed to
include “equity of redemption” language. The magistrate withdrew his May 2017 decision, and
overruled as moot the federal government’s objection. The magistrate thereafter issued another
decision with findings of fact and conclusions of law on May 18, 2017.
{¶17} On June 1, 2017, Nsong filed objections to the magistrate’s decision. Meanwhile,
a hearing was held on the association’s request for attorney fees. On June 20, 2017, the trial
court overruled Nsong’s objections, adopted the magistrate’s decision, and among other things
awarded the association $7,417.48 in unpaid fees and $6,397.50 in attorney fees. The court also
awarded judgment in favor of the United States of America. This appeal ensues; Nsong sets
forth ten assignments of error.
{¶18} The first assignment of error relates to summary judgment in favor of the
association on its complaint; the second assignment asserts that the trial court erred in “ordering
[Nsong] to file a dispositive motion within 35 [sic]1 days of her counterclaim, without allowing
for discovery or other litigation”; assignments of error three through seven relate to summary
judgment in favor of the association on her counterclaims; the eighth assignment of error relates to
the trial court’s judgment against her in the amount of $7,417.78; the ninth assignment of error
relates to the award of $6,397.50 to the association for attorney fees; and the tenth assignment of
error relates to the judgment in favor of the federal government in the amount of $160,280.33.
II. Law and Analysis
Summary Judgment Standard
{¶19} Summary judgment is proper when: “(1) there is no genuine issue of material fact;
(2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can
come to but one conclusion, and that conclusion is adverse to the nonmoving party, that party
being entitled to have the evidence construed most strongly in his favor.” Frano v. Red Robin
Internatl., Inc., 181 Ohio App.3d 13, 2009-Ohio-685, 907 N.E.2d 796, ¶ 12 (11th Dist.).
{¶20} The party seeking summary judgment on the ground that the nonmoving party
cannot prove his or her case bears the initial burden of informing the trial court of the basis for the
motion and of identifying those portions of the record that demonstrate the absence of a genuine
issue of material fact on the essential elements of the nonmoving party’s claim. Dresher v. Burt,
75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996).
1
The trial court actually allowed Nsong 45 days from its January 30, 2017 entry to file a dispositive motion.
{¶21} The moving party must point to some evidence of the type listed in Civ.R. 56(C)
that affirmatively demonstrates that the nonmoving party has no evidence to support his or her
claim. Id. at 293. If this initial burden is not met, the motion for summary judgment must be
denied. Id. However, if the moving party has satisfied his or her initial burden, the nonmoving
party then has a reciprocal burden, as outlined in Civ.R. 56(E), to set forth specific facts showing
that there is a genuine issue for trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against him or her. Id.
{¶22} Since a trial court’s ruling on a motion for summary judgment involves only
questions of law, we conduct a de novo review of the trial court’s judgment. DiSanto v. Safeco
Ins. of Am., 168 Ohio App.3d 649, 2006-Ohio-4940, 861 N.E.2d 573, ¶ 41 (11th Dist.).
The Association’s July 11, 2016 Motion for Summary Judgment on its Complaint
{¶23} The association’s foreclosure complaint was based on Nsong’s failure to pay fees
and assessments as required under its bylaws. In support of its motion for summary judgment on
its complaint, the association submitted the affidavit of one of its board members, Frank DiNardo.
DiNardo averred that “exhibit A” was a true and accurate copy of the association’s billing
statement relative to Nsong’s account, and that it reflected that, as of July 2016, she owed the
association $7,489.72, plus interest at the rate of 8% per annum for unpaid assessments, late fees,
interest and collection cost charges.
{¶24} As mentioned, Nsong did not oppose the association’s motion and, therefore, did
not present any evidence to the trial court creating a genuine issue of material fact that there was a
dispute as to what she owed the association. Our de novo review of the record, including the
association’s billing statement for Nsong that shows “all transactions” dating back to April 2009,
demonstrates that as of July 2016, she owed the association $7,489.72. The trial court, therefore,
properly granted summary judgment in favor of the association and against Nsong on the
association’s complaint.
{¶25} Nsong’s first assignment of error is overruled.
Trial Court’s Order on Dispositive Motion
{¶26} For her second assigned error, Nsong contends that the trial court abused its
discretion by “ordering” her to file a motion for summary judgment, when Civ.R. 56(A) states that
a party “may” move for summary judgment. We are not persuaded by Nsong’s contention.
{¶27} The “order” she complains of was put forth to allow her to demonstrate that there
was no genuine issue of material fact as to her counterclaims and, thus, she was entitled to
judgment as a matter law. Apparently, Nsong wanted to do just that, and requested an extension
of time to file a dispositive motion relative to her counterclaims. In ruling on her request, the
magistrate noted the parties were “previously granted sufficient leave (of forty-five (45) days) to
file dispositive motions to address the counterclaims in this case and the
defendant/counterclaimant only moved the court for additional time to file her own dispositive
motion five (5) days after the expiration of the period of leave described above.”
Notwithstanding this, the trial court granted Nsong leave until April 3, 2017, to file a motion for
summary judgment relative to her counterclaims. Nsong never filed a motion, however.
{¶28} In Gen. Motors Acceptance Corp. v. Hern Oldsmobile-GMC Truck, Inc., 8th Dist.
Cuyahoga No. 67921, 1995 Ohio App. LEXIS 3897, 32–33 (Sept. 7, 1995), this court noted that a
summary judgment deadline represents a perfectly reasonable attempt by a trial court to efficiently
control its docket. The Ohio Supreme Court has held that docketing decisions can be overturned
only where there has been an abuse of discretion. State v. Unger, 67 Ohio St.2d 65, 67, 423
N.E.2d 1078 (1981). There was no abuse of discretion here. The trial court’s order, as stated,
was to give Nsong an opportunity to demonstrate that she was entitled to judgment as a matter of
law. The court gave her more than ample time to do so, and even taking into account allowing
her additional time, she failed to file her motion.
{¶29} On this record, the second assignment of error is without merit and overruled.
The Association’s March 10, 2017 Motion for Summary Judgment on Nsong’s
Counterclaims
{¶30} In support of its motion for summary judgment on Nsong’s counterclaims, the
association submitted another affidavit of DiNardo, its board member who had previously averred
in regard to summary judgment on the association’s complaint.
{¶31} DiNardo averred that in approximately mid-January 2015, water began leaking at
the unit directly next to Nsong’s unit. After an initial assessment of the problem, it was
determined by a sewer company that the sewage piping was shared by Nsong’s unit and the
next-door unit. It was determined that repairs would have to made from inside Nsong’s unit.
{¶32} DiNardo averred that the association attempted to contact Nsong by telephone to
gain entry, but its attempts failed. The association therefore entered the unit. Upon entering the
unit, it was discovered that Nsong’s toilet had overflowed and her living room carpet was covered
in raw sewage. The sewer company was able to stop the active leak, but it determined it could
not fix the problem.
{¶33} DiNardo further averred that, over the course of the following month, the
association continuously tried to reach Nsong but was unable to make contact with her. In
February 2015, the association hired a plumbing company to make the necessary repairs to ensure
that another leak would not occur.
{¶34} The plumbing company determined that the sewage line repairs for the two units
had to occur under the half bathroom in Nsong’s unit. The association authorized the plumbing
company to conduct the repairs in Nsong’s unit. It also authorized its maintenance employees to
rip out the carpeting in Nsong’s living room to reduce the risk of black mold or other hazardous
bacteria from spreading, because there had been raw sewage sitting on her carpet. DiNardo
averred that the cost of the repairs was $2,850, but it only billed her $1,000, which she failed to
pay.
{¶35} As mentioned, Nsong neither filed an opposition to the association’s summary
judgment motion nor a motion for summary judgment in her favor on her counterclaims. Thus,
there is no Civ.R. 56 evidentiary material in the record in opposition to the association’s motion
for summary judgment on the counterclaims. We now consider each of Nsong’s counterclaims
vis-à-vis the association’s motion.
Trespass to Land and to Chattel
{¶36} Nsong’s first counterclaim against the association was for trespass upon her
property. “Trespass is the unlawful entry upon the property of another.” Chance v. BP Chems.,
Inc., 77 Ohio St.3d 17, 24, 670 N.E.2d 985 (1996). Thus, the elements of trespass are “(1) an
unauthorized intentional act, and (2) entry upon land in the possession of another.” Brown v.
Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 716, 622 N.E.2d 1153 (4th Dist.1993).
{¶37} In support of its summary judgment motion, the association submitted its bylaws,
which granted it a “maintenance easement” over the units “for access as may be necessary for the
purpose of maintaining * * * each unit.” The bylaws also provided that “[i]n the event of any
emergency originating in or threatening any unit * * * the management agent or his or her
representative or any other person designated by the board of directors may enter the unit
immediately, whether the owner is present or not.”
{¶38} The record demonstrates that an emergency situation existed and access to Nsong’s
unit was needed to fix it. After attempts to contact Nsong were unsuccessful, the association
exercised its maintenance easement and went into her unit. There simply was no evidence of an
“unauthorized intentional act.” Thus, Nsong’s trespass claim fails. The third assignment of
error is overruled.
Negligence
{¶39} Nsong asserted a negligence claim for her second counterclaim against the
association. In order to establish a claim for negligence, Nsong needed to demonstrate that the
association (1) owed a duty to her; (2) breached that duty; and (3) she suffered an injury
proximately resulting from the breach of its duty. Armstrong v. Best Buy Co., 99 Ohio St.3d 79,
2003-Ohio-2573, 788 N.E.2d 1088, ¶ 8. For the reasons that follow, Nsong failed to
demonstrate that the association was negligent in the manner in which it responded to this
situation.
{¶40} The association entered Nsong’s unit, after attempts to contact her were
unsuccessful, because a plumbing leak was discovered and fixing the plumbing fixtures in her unit
was the only way the problem could be rectified. Upon entering Nsong’s unit, the association
discovered that the toilet was leaking, causing raw sewage to soak the carpeting in the unit.
Because of the emergency situation, the association repaired the leak and removed the damaged
carpeting.
{¶41} On this record, Nsong failed to demonstrate that the association owed her any duty,
that it breached the duty, and that she suffered injury from the breach. Under the terms of the
association’s declaration, it was Nsong’s duty to maintain and repair the plumbing in her unit.
When she failed to do so, the association, under emergency circumstances, entered her unit and
repaired the plumbing. It also removed the damaged carpeting, thus mitigating further damage to
Nsong’s unit and the adjoining unit owners. Its actions were not negligent. The fourth
assignment of error is therefore overruled.
Discharge of Lien
{¶42} Nsong’s fifth assignment of error relates to her discharge of lien counterclaim,
which she brought under R.C. 5311.18(C). That statute governs the discharge of condominium
liens, and provides as follows:
A unit owner who believes that the portion of the common expenses chargeable to
the unit, for which the unit owners association files a certificate of lien pursuant to
division (a) of this section, has been improperly charged may commence an action
for the discharge of the lien in the court of common pleas of the county in which all
or a part of the condominium property is situated. In the action, if it is finally
determined that the portion of the common expenses was improperly charged to the
unit owner or the unit, the court shall enter an order that it determines to be just,
which may provide for a discharge of record of all or a portion of the lien.
{¶43} The lien that Nsong sought to have discharged was the lien that was the subject of
the association’s complaint against her. As discussed in resolving the first assignment of error,
Nsong did not oppose the association’s motion for summary judgment on its complaint and,
therefore, did not present any evidence to the trial court creating a genuine issue of material fact
that there was a dispute as to what she owed the association.
{¶44} Nsong likewise did not oppose the association’s motion for summary judgment on
her counterclaims. Thus, she again failed to demonstrate that a genuine issue of material fact
existed as to what she owed the association. We therefore again find, after our de novo review
of the record, including the association’s billing statement for Nsong that shows “all transactions”
dating back to April 2009, that as of July 2016, she owed the association $7,489.72. Nsong’s
fifth assignment of error is overruled.
Invasion of Privacy
{¶45} Nsong also asserted an invasion of privacy claim against the association, and the
trial court granted summary judgment in favor of the association on the claim. The trial court
properly did so.
{¶46} The following are the elements of an invasion of privacy claim: (1) intrusion upon
the plaintiff’s seclusion or solitude, or into his or her private affairs; (2) public disclosure of
embarrassing private facts about the plaintiff; (3) publicity that places the plaintiff in a false light
in the public eye; or (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or
likeness. Retuerto v. Berea Moving Storage & Logistics, 8th Dist. Cuyahoga No. 102116,
2015-Ohio-2404, ¶ 75.
{¶47} In her counterclaim, Nsong alleged that the association’s entry into her unit “would
be offensive [to] a reasonable person.” However, there was neither an allegation in the
counterclaim, nor evidence in the record, that the association made any type of public disclosure
about Nsong that placed her in a false light in the public eye. On this record, the trial court
properly granted summary judgment in favor of the association on Nsong’s invasion of privacy
counterclaim. The sixth assignment of error is overruled.
Breach of Contract
{¶48} For her breach of contract counterclaim, Nsong alleged that she and the association
“had an agreement regarding ownership, duties, services, and the like. [She] performed. [The
association] breached. [She] suffered damages as a result.” We disagree.
{¶49} Nsong correctly alleged the elements of a breach of contract claim: the existence
of a contract, performance by the plaintiff under the terms of that contract, breach by the
defendant, and damage or loss to the plaintiff. Powell v. Grant Med. Ctr., 148 Ohio App.3d 1,
10, 2002-Ohio-443, 771 N.E.2d 874 (10th Dist.). But she failed to demonstrate that there is a
genuine issue of material fact as to her claim.
{¶50} Initially, we note, as did the trial court, that Nsong failed to even state the binding
contract or agreement upon which her claim was based. But to the extent that her claim was
based on the associations declaration and by-laws, as already discussed, the association was
permitted to enter Nsong’s unit in the event of an emergency, which the situation here constituted.
Moreover, the responsibility of maintaining and repairing the plumbing belonged to Nsong; the
record demonstrates that she did not fulfill her responsibilities. As such, the trial court properly
granted summary judgment in favor of the association on Nsong’s breach of contract counterclaim
and the seventh assignment of error is overruled.
Monetary Judgment in Favor of Association
{¶51} In her eighth assignment of error, Nsong repeats her contention that “genuine issues
of material fact remain on [the association’s] claim that they are owed $7,417.48.” For the
reasons already discussed in resolving the first assignment of error, we reject Nsong’s contention
and overrule the eighth assignment of error.
Attorney Fees to the Association
{¶52} The ninth assignment of error challenges the trial court’s award of attorney fees to
the association. We affirm the trial court’s award.
{¶53} Nsong contends that the award was improper because the trial court found it was
allowed under the association’s declaration, but the declaration was not admitted into evidence at
the hearing. That was not a bar to the association being able to recover attorney fees, however.
As mentioned, the declaration was in the record and was reviewed by the trial court during motion
practice.
{¶54} In prosecuting a foreclosure action, an owners’ association is entitled to recover
attorney fees and court costs if recovery is permitted by the association’s declaration.
Nottingdale Homeowners’ Assn. v. Darby, 33 Ohio St.3d 32, 514 N.E.2d 702, syllabus (1987).
The declaration here provided that the association may recover attorney fees in prosecuting a
foreclosure action.
{¶55} Nsong further contends that the trial court erred in deeming the attorney the
association presented at the hearing on attorney fees an expert witness. The admission of expert
testimony is governed by Evid.R. 702, which states:
A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the knowledge or
experience possessed by lay persons or dispels a misconception common among
lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the testimony;
(C) The witness testimony is based on reliable scientific, technical, or other
specialized information. * * *
{¶56} This court stated the following as the standard of review of a trial court’s
determination on qualifying an expert witness:
The determination of whether a witness possesses the qualifications necessary to
allow expert testimony lies within the sound discretion of the trial court. [Thus],
the qualification of an expert witness will not be reversed unless there is a clear
showing of an abuse of discretion on the part of the trial court.
State v. Wages, 87 Ohio App.3d 780, 786, 623 N.E.2d 193 (8th Dist.1993).
{¶57} We note that Nsong has failed to make the transcript of the hearing on attorney fees
part of the record and, therefore, we presume the regularity of the proceeding. Cleveland Hts. v.
Aziz, 8th Dist. Cuyahoga No. 92538, 2009-Ohio-3885, ¶ 29. As noted by the magistrate’s
decision and the trial court’s judgment accepting the decision, the association presented, and the
court accepted, the testimony of attorney Eric Hoffman (“Hoffman”) as an expert witness.
Hoffman was a disinterested attorney in regard to this case, who testified that he had almost 40
years’ experience in foreclosure law, which included serving as a master commissioner in
foreclosure cases in federal court.
{¶58} Based on his experience, attorney Hoffman testified that (1) the hourly rate charged
by the association’s attorney ($150/hour) and the legal assistant ($90/hour) were reasonable and
(2) the $6,397.50 total amount of attorney fees incurred by the association in prosecuting this case
was reasonable.
{¶59} Other than lodging a general objection to Hoffman’s qualifications as an expert,
Nsong failed to specifically demonstrate how his qualifications were unacceptable to deem him an
expert; she also did not present any evidence to counter his testimony and demonstrate that the
association’s legal fees in this case were unreasonable. On this record, therefore, we presume the
regularity of the proceeding and find that the trial court did not abuse its discretion in deeming
attorney Hoffman as an expert witness and accepting his testimony.
{¶60} The ninth assignment of error is overruled.
Judgment in Favor of the United States of America
{¶61} In her final assignment of error, Nsong contends that the trial court erred in
awarding judgment to the United States of America because, although it filed an answer, it “did
not otherwise appear in any proceedings, * * * submit any evidentiary material, * * * file a
dispositive motion, and no documentary evidence or materials supported [its] claim to * * *
liens.”
{¶62} Nsong is correct that the United States of America only filed an answer in this case.
But in its answer, the government set forth its interest in the property by virtue of liens it had
against the property, notices of which were filed with the Cuyahoga County Recorder on
December 21, 2011, November 22, 2013, and September 11, 2014.
{¶63} In a similar case, the Sixth Appellate District upheld a judgment in favor of the
United States of America when the government only filed an answer claiming an interest in
property to be foreclosed on and stating that party was indebted to the government. First Fed. S.
& L. Assn. v. Szigeti, 6th Dist. Lucas No. L-88-164, 1989 Ohio App. LEXIS 1218, 4–5, 13–14
(Apr. 7, 1989).
{¶64} In awarding judgment to the federal government, the trial court in Szigeti stated the
following:
The court further finds that the defendant, United States of America, filed its
Notice of Federal Tax Lien No. 30683 against Ohio Building Association, A. J.
Szigeti, a Partnership on April 24, 1987 in the Recorder’s Office of Lucas County,
Ohio upon which there is now due and owing * * *.
Id. at 13–14.
{¶65} In upholding the judgment in favor of the United States, the Sixth Appellate District
stated:
In conclusion, we find that the United States did not move for summary judgment,
nor was a summary judgment granted in its favor by the trial court. Appellants
[,however,] have failed to set forth any evidence tending to prove that the trial
court’s finding of a federal tax lien was in any way erroneous or against the weight
of the evidence.
Id. at 14.
{¶66} Likewise here, the trial court found that Nsong was indebted to the United States
and that notices of her indebtedness were filed with the Cuyahoga County Recorder. She has
failed to set forth any evidence demonstrating otherwise. We therefore affirm the trial court’s
judgment in favor of the federal government.
{¶67} The tenth assignment of error is overruled.
{¶68} Having overruled all assignments of error, the trial court’s judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County
Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
EILEEN T. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR